2021 C L C 532
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
SHER ZAMAN and 4 others ----Petitioners
Versus
GOVERNMENT OF BALOCHISTAN, SECONDARY EDUCATION DEPARTMENT
CIVIL SECRETARIAT, QUETTA through Secretary and 2 others ----Respondents
Constitution Petition No.360 of 2020, decided on 13th July, 2020.
(a) Constitution of Pakistan ---
----Art.199 ---Constitutional petition ---Policy framed by Government ---Judicial review ---
Scope ---Petitioners assailed certain clauses of a recruitment policy ---Validity ---Recruitment
policy had not caused any prejudice to the petitioners and the same was not arbitrary rather
was based on the settled principles of law ---Courts did not interfere or strike down a policy
made by Government unle ss it was proved to be mala fide, arbitrary, made in colourable
exercise of authority or abuse of power ---Record, in the present case, did not reveal any mala
fide, arbitrariness or abuse of power on the part of the Government in respect of the
impugned cl auses of the recruitment policy ---Constitutional petition was dismissed.
Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Safdar Jamil v. Vice -
Chancellor 2011 CLC 116 and Junaid v. Federation of Pakistan 2012 CLC 1962 ref.
Musa Wazir v. N.W.F.P Public Service Commission 1993 SCMR 1124 rel.
(b) Constitution of Pakistan ---
----Art.199 ---Constitutional petition ---Policy decision by Government ---Mala fide ---Scope ---
Mala fide, being a question of fact, has to be specific and not vague ---Policy framed by the
competent authority, in the absence of mala fide, cannot be annulled.
Dossani Travels (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1 ref.
Attaullah Langove, Khudai Nazar Notkani and Fatima Nazar for Petitioners.
Arbab Muhammad Tahi r Kasi, Advocate General assisted by Zahoor Ahmed Baloch,
Additional Advocate General for Respondents Nos.1 and 3.
Naseebullah Tareen for Respondent No.2.
Khalid Ahmed Kubdani, Muhammad Akram Shah and Abdul Qayyum Mengal for
Applicants/Interveners.
Date of hearing: 6th July, 2020.
ORDER
NAEEM AKHTAR AFGHAN, J. ----In the instant constitution petition, the
petitioners have claimed the following relief:
"(i) that the revised Teaching Staff (BPS -09 to 15) Recruitment Policy, (2019) introduced
by the respondent No.1 vide notification dated 03.05.2019 (to the extent of section 10
(v) (b) and section 13(i) (ii) (iii) is against the law, facts and justice, as such, not
maintainable.
(ii) that the revised Teaching Staff (BPS -09 to 15) Recruitment Policy, 2 019 introduced
by the respondent No.1 vide notification dated 03 -05-2019 (to the extent of section
10(v)(b) and section 13(i) (ii) (iii) may be set aside and the respondents may be
directed to make appointments on the posts in accordance with the section 5 (ix) of
the Recruitment Policy, 2014 for appointment of teaching staffs of SED (Secondary
Education Department) BPS -05 to BPS -15 (other than Drivers).
(iii) to further direct the respondents that if a candidate fails to join the post within fifteen
days o r where a written refusal is received from a selectee, his/her selection shall be
cancelled and instead of re -advertising the post, next candidate coming on the merit
list be offered/considered for appointment.
(iv) any other relief which this Hon'ble Cour t may deem fit and proper in the
circumstances of the case may also be awarded".
2. Learned Advocate General appearing on behalf of respondents Nos.1 and 3 has
contested the petition without filing parawise comments.
3. The applicants/interveners have file d C.M.A. Nos.852 and C.M.A. 994 of 2020 for
their impleadment as respondents to contest the petition for safeguarding their interest being
qualified candidates.
The above CMAs have been contested by learned counsel for petitioners without
filing parawise comments.
In view of the law point involved in the matter and to avoid any further delay, instead
of joining the applicants/interveners as respondents, we decided to afford them opportunity
of hearing.
4. Learned counsel for petitioners contended that the petitioners are not challenging the
Revised Teaching Staff (BPS -2 to 15) Recruitment Policy, 2019 (hereinafter "Policy of
2019") as a whole and they are pressing the petition to extinguish clause 10 (v) (b) and
clause 13(i) (ii) (iii) of the Policy of 201 9 with prayer to adopt clause 5(v) (b) and clause
5(ix) of Recruitment Policy, 2014 (hereinafter "Policy of 2014").
Learned counsel for the petitioners stated that the petitioners having qualified for
selection on merits from different districts would bec ome entitled for appointment in case the
candidates selected for the available posts did not join if clause 5(ix)(b) of the Policy of 2014
is adopted in the Policy of 2019.
Learned counsel for petitioners has relied upon the unreported judgment dated
29.11.2019 passed by this Court in C.P. No.960/2019.
5. Learned AG raised objection on maintainability of the constitution petition in view of
Article 139 of the Constitution of Islamic Republic of Pakistan (hereinafter "the
Constitution").
It was contended b y learned AG that the Policy of 2019 is based on the judgment
passed by the Hon'ble Supreme Court of Pakistan in the case of Musa Wazir v. N.W.F.P
Public Service Commission, 1993 SCMR 1124 which was previously not in the knowledge
of the Government at the time of notifying the Policy of 2014; rule 15 of the Balochistan
Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 (hereinafter "the Rules")
protect/preserve the zonal/district allocation of vacancies; there is no mala fide of the
Government in notifying the Policy of 2019.
6. Learned counsel for respondent No.2 stated that the result of test has already been
announced and merit lists of the candidates have been prepared.
7. Learned counsel for the applicants/interveners adopted the arguments of learned
AAG.
8. After hearing learned counsel for petitioners, learned AG, learned counsel for
respondent No.2 and learned counsel for applicants/interveners we have perused the
available record and have gone through the referred judgments.
9. Clause 5 (v) (b) of the Policy of 2014 reads as follows:
"(b) In case of non -availability of eligible candidates from the concerned village then the
candidates belonging to UC and tehsils in ascending order of the district will be
eligible to compete in order of merit".
As compared to the above, clause 9 (v) (a) of the Policy of 2019 reads as follows:
"(a) Merit list will be category -wise, gender -wise of rural areas should be caused on Union
Councils, Tehsil and District (in ascending order) area wise and urban areas on
Municipal Committee/Corporation basis vide approved suggestion referred S. No.1 of
subsec tion-V above (According to the advertised vacancy as General Merit Lists
Quota, Disable and Minority for each category wise/post wise separately".
Rule 15 of the Rules, being relevant, reads as follows:
"15. Zonal/District allocation of the post for initi al appointment will be considered in
the light of policy/procedure laid down by the Government from time.
Provided that for the purposes of appointments in Primary and Middle Schools both
for teaching and non -teaching posts, the merit shall be based on Vi llage, Union
Council, Tehsil and District level in ascending order".
10. Comparison of the above clauses reveals that clause 9 (v) (a) of Policy of 2019 has
conformity with clause 5 (v) (b) of Policy of 2014 as the selection of the candidates will be
made on the basis of Union Councils, Tehsil and District in ascending order areas wise.
According to the proviso to Rule 15 of the Rules as well, the vacancies have to be
allocated on Zonal/District basis i.e. the merit shall be based on village, Union Council ,
Tehsil and District level in ascending order.
11. Clause 9 (v) (b) of the Policy of 2019 reads as follows:
"(b) In case of Non -availability of eligible candidates from any area the post(s) shall
be re -advertised".
This clause of Policy of 2019 has pres erved the Zonal/District allocation of the
vacancies as instead of adjusting the candidates from other Zones/Districts, where no eligible
candidate is available from any area, the requisite posts(s) shall be re -advertised.
In view of all the above it is c oncluded that clause 9 (v) (a) & (b) of the Policy of
2019 has not caused any prejudice to the petitioners and same is not arbitrary.
12. Clause 5 (ix) (b) of the Policy of 2014 reads as follows:
"If a person fails to join the post within fifteen days or where a written refusal is
received from a selectee, his/her selection shall stand cancelled and next person on
the merit list will be offered the Letter of Agreement".
As compared to the above, clause 13 (i) (ii) (iii) of the Policy of 2019 reads as
follows:
"i. If a person fails to join the post within fifteen days or where a written refusal is
received from a selectee. His/her selection shall stand cancelled.
ii. There will be no waiting list.
iii. No candidate will be considered for appointment in case of withdrawal of the
principal candidate or his/her disqualification for any reason. Such post will remain
vacant and will be re -advertised".
In the case of 'Musa Wazir' referred by learned AG, it has been laid as follows by the
Hon'ble Supreme Court of Pakistan:
"8. In the case of posts vacated by non -joinder of selected candidates or subsequent
requisitions received the ordinary course for the Commission and the Government
should be to re -advertise it".
13. From the above, it transpires that clause 5 ( ix) (b) of the Policy of 2014 was violative
of the principle laid down by the Hon'ble Supreme Court in the above referred case and
clause 13 (i) (ii) (iii) of the Policy of 2019 has been notified by the Government on the basis
of principle laid down by the Hon'ble Supreme Court in the above judgment.
14. According to settled principles of law, in exercise of powers under Article 199 of the
Constitution, Courts normally do not interfere or strike down a policy made by Government
unless it is proved mala fide, arbitrary, made in colorable exercise of authori ty or abuse of
power. Reliance in this regard is placed on the cases of Farzand Ali v. Province of West
Pakistan, PLD 1970 SC 98, Safdar Jamil v. Vice -Chancellor, 2011 CLC 116 and Juniad v.
Federation of Pakistan, 2012 CLC 1962.
15. Mala fide being a ques tion of fact has to be specific but not vague. In absence of mala
fide, the policy framed by the competent authority cannot be annulled. Reliance in this regard
is placed on the case of Dossani Travels (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.) Ltd. PLD
2014 SC 1.
16. In the judgment dated 29.11.2019 passed by this Court in C.P. No.960/2019 which
has been relied upon by learned counsel for the petitioners, the bench intentionally refrained
to render any observation on the legality or validity of the Policy o f 2019 and the questions
were left open for judicial scrutiny on an appropriate juncture in any other case.
In the above judgment, while observing that official respondents neither amended the
Rules nor bothered to bring the policy in consonance with the Rules and after holding that
any policy made/ framed cannot override the Rules, the Government was directed to insert
condition of Diploma of Physical Education with at -least 2nd Division for appointment of the
eligible candidate(s) against the post(s) of Physical Education Teacher as it was mandated by
the Balochistan Education Department (Schools Branch) (Men's Section) (Basic Pay Scale 1
to 15) Service Rules, 1984.
The above judgment is distinguishable and same is not attracted in the facts and
circumst ances of the instant case.
17. Record does not reveal of any mala fide, arbitrariness or abuse of power on the part of
Government in respect of clause 9 (v) (a) (b) and clause 13 (iii) of the Policy of 2019.
For the above reasons, the constitution petitio n is dismissed. The earlier interim order
dated 28.04.2020 stands recalled.
SA/242/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.